NSA Phone Data Program Called Illegal by Privacy Oversight Board

Jan. 23 (Bloomberg) -- The U.S. National Security Agency’s collection of phone call records from millions of Americans is illegal and should be stopped, a federal privacy board recommends, according to two people familiar with the report.

The five-member Privacy and Civil Liberties Oversight Board, created by Congress to protect privacy under post-Sept.11 anti-terrorism laws, said in a 238-page report to be released today that the program has provided only “minimal” help to the U.S. in thwarting other terrorist attacks, said the people, who requested anonymity because they were not authorized to discuss the findings.

Disputing the government’s legal premise for the collection of bulk phone data from such carriers as Verizon Communications Inc. and AT&T Inc., the panel’s report will probably fuel efforts in Congress to curb the program. Last week, President Barack Obama said the NSA shouldn’t keep the records and should be required to get court orders before accessing future data, in a speech responding to the uproar set off by disclosures by former government contractor Edward Snowden of telephone and Internet spying by the NSA.

The U.S. justification for the phone records collection under Section 215 of the Patriot Act “implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value,” the report said, according to the people. “As a result, the board recommends that the government end the program.”

Obama defended U.S. electronic spying as a bulwark against terrorism. He proposed changing aspects of the phone metadata program yet referred to Congress the details, such as whether the government, the phone companies or an unidentified third party should retain the data.

Three-to-Two

Three of the five privacy board members agreed with the legal analysis that the NSA’s phone records collection is illegal, while two other panelists said the board should limit its review to whether the program violates privacy and civil liberties.

Representative Mike Rogers, a Michigan Republican and chairman of the House intelligence committee, who has been supportive of the surveillance tools, seized on that disagreement in an e-mailed statement today.

“In 38 times over the past seven years, 17 federal judges have examined this issue and found the telephone metadata program to be legal, concluding this program complies with both the statutory text and with the U.S. Constitution,” Rogers said. “I don’t believe the Board should go outside its expertise to opine on the effectiveness of counterterrorism programs.”

The panel’s findings were previously reported by the New York Times.

Obama Briefed

Obama promised U.S. citizens and allies abroad that he’d put restraints on the government’s sweeping global surveillance programs while maintaining that the programs helped thwart attacks.

Members of the privacy board briefed Obama on their planned recommendations ahead of his Jan. 17 announcement. The recommendations from the bipartisan, independent agency housed in the executive branch also follows a December report by a separate, independent review panel appointed by the president.

The privacy panel, created by Congress in 2007 but only operational last year, is led by David Medine, a former Federal Trade Commission official in former President Bill Clinton’s administration. Medine agreed with the findings along with retired appeals court Judge Patricia M. Wald, and James X. Dempsey, a civil liberties advocate who specializes in technology issues, the people said.

The two members who disagreed with the legal analysis are Washington attorneys Rachel Brand and Elisebeth Collins Cook.

Judicial Review

Obama said he would require judicial review of requests to query phone call databases and ordered the Justice Department and intelligence officials to devise a way to take storage of that data out of the government’s hands.

He left other steps to limit surveillance up to a divided Congress, meaning that other changes may be months away if they are adopted at all.

Obama gave Attorney General Eric Holder and intelligence officials 60 days to develop a plan for storing bulk telephone records outside of government custody, one of the most contentious issues arising from Snowden’s disclosures.

Phone companies, such as Verizon and AT&T, have resisted being required to retain telephone metadata for the government because of the potential cost and legal exposure. An entity to take on that role doesn’t yet exist. The administration plans to deliver a proposal on data storage to Congress by the end of March.

Obama called for the creation of an outside panel of advocates to weigh in on new and major privacy issues before the Foreign Intelligence Surveillance Court.

The most concrete and immediate changes announced by Obama will require judicial review for queries of the metadata records. In addition, the government can no longer access records that go beyond two persons removed from the query the government makes.

Under the president’s plan, the U.S. won’t monitor the communications of leaders of close allies unless there is a compelling national security interest while that leaves loopholes for the U.S. government to continue its spying abroad.